UK cannot stop article 50 case going to ECJ, says Scottish court

  • United Kingdom
  • 11/08/2018
  • The Guardian Law

Scotland’s highest court has refused the UK government leave to appeal its referral of a case to the European court of justice that seeks to establish whether the UK can unilaterally stop Brexit. This paves the way for the case to be heard in Luxembourg later this month.

The case has been brought by a cross-party group of six Scottish MPs, MEPs and MSPs, along with Jolyon Maugham QC, the director of the Good Law Project, who helped arrange the case after a crowdfunding appeal. They want the ECJ to offer a definitive ruling on whether the UK can halt the article 50 process without needing the approval of the 27 other EU member states.

At the court of session in Edinburgh on Thursday, Lord Carloway, Scotland’s most senior judge, rejected the arguments put by the advocate general, Lord Keen, on behalf of the UK government to appeal the decision before the supreme court in London.

Carloway said that if the ECJ was required to await the decision of the supreme court, then there would be “little prospect” of the hearing taking place in advance of the Commons “meaningful vote” on Brexit, rendering the entire exercise “academic”.

He added that he believed that the UK government could still seek to appeal following the ECJ hearing: “This court does not consider that its decision fetters the options open to parliament or freedom of speech within its walls.”

Article 50 is silent on whether the member state that triggered it unilaterally can also cancel it unilaterally. UK ministers and the European commission have indicated they believe that withdrawing an article 50 application requires the consent of the 27 other EU member states.

Carloway was one of three judges to refer the case to the ECJ in September. He then noted that the Commons would be required to vote on whether to ratify any Brexit deal before 29 March 2019, and that a judgment from the ECJ would “have the effect of clarifying the options open to MPs in the lead-up to what is now an inevitable vote”.

The Scottish Green party MSP Andy Wightman, who led the group of politicians, welcomed the decision, saying that “the UK government has failed in its attempts to frustrate our successful referral to the court of justice”.

The SNP’s Joanna Cherry, the only MP in Wightman’s group after warnings from the government that the action was breaching parliamentary privilege, added: “MPs need to know the answer to this question. The choice is not ‘whatever deal Theresa May can get’ or ‘no deal’. The UK government will not now succeed in its ruse to keep parliament in the dark.”

The Department for Exiting the EU said: “The government has made submissions to the CJEU. In any event, the government will not be revoking Article 50.”